United States Court of Appeals

For the First Circuit

No. 00-1775

MICHAEL SPIELMAN,

Plaintiff, Appellant,

v.

GENZYME CORP. and 

GENZYME DEVELOPMENT CORP.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Boudin, Lynch, and Lipez, Circuit Judges.

John Peter Zavez, with whom Adkins, Kelson & Zavez, P.C.

were on brief, for appellant.

Michael T. Gass, with whom Paige Scott Reed and Palmer &

Dodge LLP were on brief, for appellees.

May 24, 2001
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LIPEZ, Circuit Judge. Michael Spielman, the named plaintiff

in a putative class action, appeals the district court's dismissal of

his suit for lack of subject matter jurisdiction. The court found that

the plaintiff's individual damages claim failed to satisfy the amountin-controversy minimum set by 28 U.S.C. § 1332 for entry into federal

court. The court also rejected the plaintiff's alternative argument

that his claim for attorney's fees under Chapter 93A of the

Massachusetts Consumer Protection Statute fulfilled the amount-incontroversy requirement because Massachusetts law allowed him to

aggregate all of the fees anticipated by the class. We agree that

Spielman does not meet the amount-in-controversy minimum and affirm the

district court's dismissal of his suit. 

I.

In 1987, Michael Spielman, a New York resident, bought a

limited partnership interest in Genzyme Clinical Partners, L.P. (GCP),

which sought to develop a treatment for Gaucher's disease. At that

time Genzyme Development Corporation (Genzyme Development), a

subsidiary of Genzyme Corporation (Genzyme), was the general partner

of GCP. As general partner, Genzyme Development was obligated by law

and by the limited partnership agreement to issue annual federal and

state tax schedules to the limited partners. No schedules were issued

between 1987 and 1990. In 1990, the GCP limited partners approved the
1 Genzyme Development ceased to exist in 1990, and Genzyme, as

parent corporation, assumed its liability. Spielman's suit named both

entities but proceeded against Genzyme alone. 

-3-

sale of the partnership's assets to Genzyme in exchange for shares of

common stock. As a result, GCP was liquidated.

This transaction had tax implications for Spielman and some

of the other 190 GCP limited partners who lived outside of

Massachusetts. Sometime after Genzyme bought GCP, the Massachusetts

Department of Revenue determined that the sale and liquidation was a

taxable event under state law. In 1993, the Department notified the

former limited partners who had not filed 1990 Massachusetts tax

returns that they owed state taxes on their share of the liquidation

income. Spielman was assessed a tax of $10,820, which he did not pay.

In 1995, the Department penalized Spielman for delinquent payment by

doubling the amount he owed to $21,640.

On November 9, 1995, Spielman filed a class action in

federal court on behalf of himself and similarly situated former GCP

limited partners against Genzyme Development and Genzyme.1 The

complaint included claims of negligent misrepresentation, common law

fraud, breach of fiduciary duty, and breach of contract. It alleged

that Genzyme Development's failure to issue the required 1990 tax

schedules for GCP caused Spielman and the other class members to incur

Massachusetts tax liability. As a resident of New York suing a

Massachusetts corporation, Spielman asserted diversity jurisdiction
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under 28 U.S.C. § 1332, but did not specify a damages amount. At the

time the suit was filed, § 1332(a) required that the "matter in

controversy" exceed $50,000 for federal court jurisdiction to attach.

See Act of Oct. 19, 1996, Pub. L. No. 104-317, 110 Stat. 3850 (amending

28 U.S.C. § 1332(a) so as to raise jurisdictional amount from $50,000

to $75,000).

Five days after filing the class action complaint, Spielman

filed an appeal with the Massachusetts Appellate Tax Board to determine

the taxes and penalty he owed for the GCP liquidation. On October 24,

1996, Genzyme filed a motion to dismiss for lack of subject matter

jurisdiction, alleging that Spielman's damages fell below the required

$50,000 minimum. In opposition to this motion, Spielman filed an

affidavit on November 21, 1996 claiming $21,640 in "double taxes,"

$16,211.47 in interest, $11,246.48 in penalties, and $1,305 in

accountant fees. The itemized damages totaled $50,402.95. The

affidavit asserted, however, that Spielman's damages as of the date his

complaint was filed were $61,673.77, though it did not explain the

$11,270.82 discrepancy between that amount and the itemized total. 

On December 12, 1996, the district court denied Genzyme's

motion to dismiss for lack of subject matter jurisdiction, but stayed

Spielman's action pending the state Tax Board's ruling on the amount

of his tax liability. The court said: "This action . . . has been

prematurely brought. After a review of the papers and pleadings, it
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is not possible at this time to determine plaintiff's damages, as

damages can be reasonably calculated only upon completion of the state

administrative proceedings."

This stay remained in place for more than two years. Then

at a February 8, 1999 status conference, Spielman told the court that

the Tax Board had assessed his final tax liability at $10,820--the

taxes he owed for GCP's liquidation, with no assessment of penalties

or interest. Spielman also said that to achieve this result he had

paid attorney's fees of $7,000 and accountant's fees of $1,305, for a

total of $8,305. Spielman told the court he would consider whether the

Tax Board's ruling meant that he could no longer meet the amount-incontroversy minimum. The next day, the court lifted the stay on

Spielman's class action. 

Five months later, on July 16, 1999, Spielman asked the

court for leave to file an amended complaint. The amendment alleged

no new facts, but added a claim under Chapter 93A of the Massachusetts

Consumer Protection Act, which permits prevailing plaintiffs to recover

attorney's fees as part of their damages award. Genzyme protested,

arguing that Spielman's attempt to amend the complaint was untimely and

a "transparent attempt to establish federal court jurisdiction where

none exists." On September 22, 1999, the court granted Spielman's

request to amend the complaint, saying that the court's December 1996

stay accounted for the delayed filing of the amendment.
2 While Spielman also claims as damages the $10,820 in taxes that

he owed to Massachusetts, we think it inappropriate to treat as damages

a tax liability that Spielman had to pay independently of Genzyme

Development's alleged failure to provide the required tax schedule. 

3 On October 25, 1999, Spielman filed a motion to certify the suit

as a class action. The district court did not rule on this motion.

Nonetheless, the court properly treated the suit as a class action for

purposes of the jurisdictional analysis. See Doucette v. Ives, 947

F.2d 21, 30 (1st Cir. 1991) ("During the period between the

commencement of a suit as a class action and the court's determination

that it may be so maintained, the suit should be treated as a class

action.").

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On November 2, 1999, Genzyme renewed its motion to dismiss

for lack of subject matter jurisdiction, claiming that the state Tax

Board ruling established that Spielman had incurred at most $8,305 in

damages.2 In opposition to this motion, Spielman argued that his

damages claim for attorney's fees under Chapter 93A should include the

fees for the class, and that aggregating the fees to him would boost

his claim over the $50,000 minimum. Spielman also urged the court to

exercise supplemental jurisdiction over the other members of the class

even if they individually failed to meet the amount-in-controversy

requirement.3 On May 5, 2000, the district court granted Genzyme's

motion to dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1). The court found that the Tax Board's

ruling meant that the damages that Spielman alleged on the face of his

original complaint failed to satisfy the jurisdictional minimum at the

time that complaint was filed. The court also declined to exercise

jurisdiction on the basis of Spielman's amended complaint, finding that
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under Massachusetts law Chapter 93A anticipated the pro rata

distribution of attorney's fees to members of the class for purposes

of determining jurisdiction, rather than aggregation to the named

plaintiff. Spielman appeals.

II.

We review de novo the district court's dismissal for lack

of subject matter jurisdiction. Coventry Sewage Assoc. v. Dworkin

Realty Co., 71 F.3d 1, 3 (1st Cir. 1995). The facts pertinent to this

appeal are undisputed. However, as the party seeking to invoke

jurisdiction, Spielman has the burden of showing that he has met the

statutory requirements. Id. at 4.

As we have noted before, competing interests are at stake

when federal courts determine whether they may hear a case. Id.; 14B

Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3702 at 16 (1998). On the one hand, the

Constitution limits the jurisdiction of federal courts, see U.S. Const.

Art. III, and Congress has further narrowed our jurisdiction by

periodically increasing the amount-in-controversy minimum for diversity

cases. This means that we have a responsibility to police the border

of federal jurisdiction. Pratt Cent. Park Ltd. P'ship v. Dames &

Moore, Inc., 60 F.3d 350, 352 (7th Cir. 1995). On the other hand,

determining whether a case belongs in federal court should be done

quickly, without an extensive fact-finding inquiry. "To make the
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'which court' decision expeditiously and cheaply, a judge must simplify

the inquiry. . . ." Id.

With these competing interests in mind, we apply the Supreme

Court's longstanding test for determining whether a party has met the

amount-in-controversy minimum. St. Paul Mercury Indemnity Co. v. Red

Cab Co., 303 U.S. 283 (1938) states that: 

The rule governing dismissal for want of

jurisdiction in cases brought in the federal

court is that, unless the law gives a different

rule, the sum claimed by the plaintiff controls

if the claim is apparently made in good faith.

It must appear to a legal certainty that the

claim is really for less than the jurisdictional

amount to justify dismissal.

Id. at 288-89 (footnotes omitted). Under St. Paul, a plaintiff's

general allegation of damages that meet the amount requirement suffices

unless questioned by the opposing party or the court. See Dep't of

Recreation and Sports v. World Boxing Ass'n, 942 F.2d 84, 88 (1st Cir.

1991). Once the damages allegation is challenged, however, "the party

seeking to invoke jurisdiction has the burden of alleging with

sufficient particularity facts indicating that it is not a legal

certainty that the claim involves less than the jurisdictional amount."

Id.; see also Barrett v. Lombardi, 239 F.3d 23, 30-31 (1st Cir. 2001).

"A party may meet this burden by amending the pleadings or by

submitting affidavits." Dep't of Recreation and Sports, 942 F.2d at

88. 
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Courts determine whether a party has met the amount-incontroversy requirement by "looking to the circumstances at the time

the complaint is filed." Coventry Sewage, 71 F.3d at 4; Wright &

Miller § 3702 at 28-29 n.31. Thus St. Paul's legal certainty standard

does not mean that jurisdiction is ousted because of the eventual

"inability of plaintiff to recover an amount adequate to give the court

jurisdiction," or because "the complaint discloses the existence of a

valid defense to the claim." Coventry Sewage, 71 F.3d at 5. In

addition, "[e]vents occurring subsequent to the institution of suit

which reduce the amount recoverable below the statutory limit do not

oust jurisdiction." St. Paul, 303 U.S. at 289-90. On the other hand,

and importantly for this case, 

if, from the face of the pleadings, it is

apparent, to a legal certainty, that the

plaintiff cannot recover the amount claimed or

if, from the proofs, the court is satisfied to a

like certainty that the plaintiff never was

entitled to recover that amount . . . the suit

will be dismissed. 

Id. at 289 (emphasis added).

After Genzyme challenged his damages allegation, Spielman

tried in two ways to meet the burden of showing that his claim met the

legal certainty test for the amount-in-controversy minimum. First, he

submitted an affidavit itemizing $50,402.95 in damages and claiming

total damages of $61,673.77. Spielman says that the damages

allegations in the affidavit meet St. Paul's legal certainty test
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because they represent his good-faith claim at the time he filed suit.

According to Spielman's theory, the state Tax Board's ruling that his

tax liability was only $10,820 was a "subsequent event" under St. Paul,

and thus unrelated to the facts as they existed at the time he filed

his complaint. Alternately, Spielman sought to meet the amount-incontroversy minimum by amending his complaint to include a claim for

attorney's fees under Chapter 93A. He argues that the fees claim

boosts his damages allegation over $50,000 because it encompasses not

only the fees anticipated for his individual case, but also the fees

that will be generated on behalf of other members of the class. We

address each of Spielman's arguments in turn.

III.

A. Spielman's Individual Damages Claim

Invoking St. Paul, Spielman argues that the Tax Board's

ruling was a "subsequent event" that cannot be factored into the

court's amount-in-controversy analysis. Here Spielman attempts to draw

an analogy between the facts in this case and those in our own

precedent, Coventry Sewage Assoc. v. Dworkin Realty Co., 71 F.3d 1 (1st

Cir. 1995). In Coventry Sewage, the defendant refused to pay the

plaintiff for sewer-main usage after a service-fee increase. The

plaintiff sued for approximately $75,000, basing that amount on

invoices provided by the local county water authority. After the

complaint was filed, the water authority discovered that it had misread
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the defendant's water meters. Correction of this error left less than

$10,000 in dispute. Id. at 3.

We found that the water authority's correction of its meterreading error was a "subsequent event" under St. Paul. In summarizing

the rationale for this holding, we said: 

In the instant case, an independent third party

with otherwise no connection to the case made an

apparently non-obvious error so that the amountin-controversy at the time of filing, in fact,

exceeded the jurisdictional minimum. Coventry

had no reason to know that its claimed amount of

damages was in error. Moreover, the reduction

of the amount in controversy resulted from acts

occurring wholly after the action commenced. 

Id. at 8. Spielman argues that we should exercise jurisdiction here

based on a similar rationale. We decline.

Coventry Sewage is inapposite. Unlike the water authority

in Coventry Sewage, the Tax Board did not reduce an initial assessment

of the damages amount that exceeded the jurisdictional minimum. Here

there was considerable question at the outset as to whether Spielman's

damages amount met the jurisdictional minimum--a question that the

trial judge raised but deferred resolution of when he issued the stay.

Spielman included as damages $10,820 in taxes that he owed

independently of any act or omission by Genzyme Development, and he

boosted his claim over the $50,000 jurisdictional minimum by adding

$11,270.82 from a source he never identified. The state Tax Board

ruling thus confirmed what had been apparent earlier: Spielman's
4 In Coventry Sewage, we discussed the argument raised by the

appellee in that case that there is a meaningful distinction between

"subsequent events that change the amount in controversy and subsequent

revelations that, in fact, the required amount was or was not in

controversy at the commencement of the action." 71 F.3d at 8 (quoting

Jones v. Knox Exploration Corp., 2 F.3d 181, 183 (6th Cir. 1993)).

Whatever merit that distinction may have as a framework for analysis,

it is not helpful here because the Tax Board's ruling does not fit into

either category. As we have explained, the ruling was not a

"subsequent event" within the meaning of St. Paul because the plaintiff

was never in fact at risk of harm in excess of the jurisdictional

amount. Nor was the ruling a revelation. There was good reason to

believe from the beginning of this action that Spielman's damages fell

well below the amount-in-controversy minimum, and the Tax Board's

ruling merely confirmed that fact.

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attempt to meet the jurisdictional minimum was in vain from the

beginning.4 B. Spielman's Chapter 93A Attorney's Fees Claim

Spielman argues that his attorney's fees should be included

as part of his anticipated damages. Normally, attorney's fees are

excluded from the amount-in-controversy determination because "the

successful party does not collect his attorney's fees in addition to

or as part of the judgment." Velez v. Crown Life Ins. Co., 599 F.2d

471, 474 (1st Cir. 1979) (citing 1 Moore's Federal Practice 0.99(2)).

There are two exceptions to this rule: when the fees are provided for

by contract, and when a statute mandates or allows payment of the fees.

Id. The second exception applies here. Chapter 93A of the

Massachusetts Consumer Protection Act allows plaintiffs to collect

attorney's fees as part of their damages. See Mass. Gen. Laws ch. 93A,

§ 9(4). We thus must decide whether Spielman met the amount-incontroversy minimum by amending his complaint to include a Chapter 93A
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claim. Spielman does not allege, however, that his individual

attorney's fees are high enough to boost his damages claim over the

amount-in-controversy minimum. Rather he seeks, for jurisdictional

purposes, to aggregate the attorney's fees that he anticipates will be

needed to press the claim of the entire class for which he is named

plaintiff. Because of Supreme Court precedent, this is a difficult

argument to make. 

As we have noted, the statute that provides for federal

court diversity jurisdiction, 28 U.S.C. § 1332(a), requires that the

"matter in controversy" exceed the jurisdictional minimum. Based on

this language, "[t]he traditional judicial interpretation . . . has

been from the beginning that the separate and distinct claims of two

or more plaintiffs cannot be aggregated in order to satisfy the

jurisdictional amount requirement." Snyder v. Harris, 394 U.S. 332,

335 (1969) (citing earlier cases). In Snyder, the Court rejected the

argument that this rule should not apply to class action plaintiffs,

whose claims, the argument goes, should instead be aggregated for

jurisdictional purposes. The Court said: 

To overrule the aggregation doctrine at this

late date would run counter to the congressional

purpose in steadily increasing through the years

the jurisdictional amount requirement. That

purpose was to check, to some degree, the rising

caseload of the federal courts, especially with

regard to the federal courts' diversity of

citizenship jurisdiction. 
5 Zahn held that courts may not exercise supplemental jurisdiction

over the claims of class action plaintiffs who do not separately meet

the jurisdictional minimum. Zahn, 414 U.S. at 301. There is a question

about whether this holding remains good law after the enactment of the

Judicial Improvements Act of 1990, 28 U.S.C. § 1367. See Packard v.

Provident Nat'l Bank, 994 F.2d 1039, 1045 n.9 (3d Cir. 1993)

(discussing extensive academic literature). The circuits have split

over whether the Act intended to overrule Zahn and allow courts to

exercise such supplemental jurisdiction. Compare Stromberg Metal

Works, Inc. v. Press Mech., Inc., 77 F.3d 928 (7th Cir. 1996) and In re

Abbott Labs., 51 F.3d 524, 529 (5th Cir. 1995) (holding that

supplemental jurisdiction may exist after the Judicial Improvement

Act), with Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214,

219 (3d Cir. 1999) and Leonhardt v. Western Sugar Co., 160 F.3d 631,

640 (10th Cir. 1998) (holding that Congress did not intend to change

the rules set by Zahn). Since we find that the court lacked

jurisdiction over Spielman, we do not reach his contention that it

should exercise supplemental jurisdiction over the other members of the

class even though their individual claims do not meet the amount

requirement. The Judicial Improvements Act does not call into question

Zahn's reaffirmance of Snyder's holding that individual damages claims

may not be aggregated to satisfy the jurisdictional minimum.

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Id. at 339-40. The Court reaffirmed this holding in Zahn v.

International Paper Co., 414 U.S. 291 (1973), adding, "Neither are we

inclined to overrule Snyder v. Harris nor to change the Court's longstanding construction of the 'matter in controversy' requirement of §

1332."5 Id. at 301.

The Supreme Court has not discussed whether the named

plaintiff in a class action may aggregate the attorney's fees of the

class to satisfy the jurisdictional amount requirement when a state

statute like Massachusetts's Chapter 93A authorizes the awarding of

fees to a successful litigant. Two circuits have addressed this

question. Reviewing a claim made under a California statute that
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authorizes attorney's fees, the Ninth Circuit held that aggregating

anticipated fees to the named plaintiff to allow her to meet the

amount-in-controversy requirement "would conflict with the policy of

Zahn . . . in which the Supreme Court reaffirmed that the 'matter in

controversy' requirement must be satisfied by each member of the

plaintiff class." Goldberg v. CPC Int'l, Inc., 678 F.2d 1365, 1367

(9th Cir.), cert. denied, 459 U.S. 945 (1982). The court thus held

that "potential" attorney's fees could not be used to satisfy the

amount-in-controversy minimum. Id. at 1367. Several district courts

have followed this approach. See, e.g., Karofsky v. Abbott Labs., 921

F. Supp. 18 (D. Me. 1996); Ratliff v. Sears, Roebuck & Co., 911 F.

Supp. 177 (E.D.N.C. 1995); Quebe v. Ford Motor Co., 908 F. Supp. 446

(W.D. Tex. 1995); Visintine v. Saab Auto. A.B., 891 F. Supp. 496, 499

(E.D. Mo. 1995); Gilman v. Wheat, First Sec., Inc., 896 F. Supp. 507

(D. Md. 1995). 

The Fifth Circuit considered the question of whether

attorney's fees may be aggregated to obtain federal jurisdiction under

a Louisiana statute that specifically authorizes the awarding of

attorney's fees in a class action. In re Abbott Labs., 51 F.3d 524,

526 (5th Cir. 1995), determined that there was federal jurisdiction for

a class action claim governed by Article 595 of the Louisiana Code of

Civil Procedure. Article 595 provides: "The court may allow the

representative parties their reasonable expenses of litigation,
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including attorney's fees, when as a result of the class action a fund

is made available, or a recovery or compromise is had which is

beneficial, to the class." La. Code Civ. Proc. art. 595. The Fifth

Circuit said that Article 595 entitled class representatives to

anticipated attorney's fees, and that the phrase "representative

parties" referred to the named plaintiff or plaintiffs in a class

action. The court rejected the argument that Zahn precluded

attributing the fees of the class to the named plaintiff when that is

what a state statute provides. See Abbott Labs., 51 F.3d at 527. The

court distinguished Goldberg on the ground that it "sheds little light

on the distinct policy choices behind Louisiana's decision regarding

rights of recovery by class members." Id. at 526. An evenly divided

Supreme Court recently affirmed the Fifth Circuit's decision under the

name of Free v. Abbott Labs., Inc., 529 U.S. 333 (2000).

Spielman argues that the attorney's fees provision of

Chapter 93A, like Article 595 of the Louisiana code as construed in

Abbott Labs., allows him to aggregate the anticipated fees of his class

toward the amount-in-controversy minimum. Chapter 93A provides in

relevant part:

If the court finds in any action commenced

hereunder that there has been a violation of

section two, the petitioner shall, in addition

to other relief provided for by this section and

irrespective of the amount in controversy, be

awarded reasonable attorney's fees and costs

incurred in connection with said action.
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Mass. Gen. Laws ch. 93A, § 9(4). Spielman urges us to read

"petitioner" in the same way that the Fifth Circuit read

"representative parties" in Article 595. We have reservations about

the correctness of Abbott Labs. Even if that were not the case,

however, we would decline to adopt the parallel reading that Spielman

advocates. 

To begin with, § 9(4) does not refer to class actions or to

named class action plaintiffs. Nor do other sections of Chapter 93A

specifically discuss multiple-party lawsuits. The statute simply

offers a cause of action to a consumer or a group of consumers who

claim that a business has defrauded them. Thus in contrast to Article

595 of the Louisiana code, which explicitly provides that attorney's

fees may be awarded to the "representative parties . . . when as a

result of the class action a fund is made available . . . to the class"

(emphasis added), nothing in Chapter 93A suggests that the legislature

intended "petitioner" to refer to the named plaintiff in a class action

rather than to each of the members of the class. 

As the Massachusetts district court pointed out recently,

"petitioner" is a generic term in Massachusetts law. See Ciardi v. F.

Hoffmann-La Roche, Ltd., No. Civ. A. 99-11936-GAO, 2000 WL 159320, at

*2 (D. Mass. Feb. 7, 2000). In rejecting the same aggregation argument

that Spielman makes here, Ciardi ably explained: "The term 'petitioner'
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is one historically used in Massachusetts as the equivalent in equity

of the term 'plaintiff' at law. While petitioners might from time to

time have been representatives, they were not necessarily so, and the

terms in Massachusetts are not interchangeable." Id. at *2. We agree.

The text of § 9(4) does not support Spielman's argument that the

statute uses the word "petitioner" as the equivalent of the term

"representative" in the Louisiana statute. 

We also reject Spielman's contention that the Massachusetts

Supreme Judicial Court's statement in Coggins v. New England Patriots

Football Club, Inc., 550 N.E.2d 141 (Mass. 1990) ( Coggins II), about

the award of attorney's fees from a common fund controls the

jurisdictional outcome here. That case began with Coggins v. New

England Patriots Football Club, Inc., 492 N.E.2d 1112 (Mass. 1986)

(Coggins I), in which a group of non-voting shareholders brought a

corporate derivative action to challenge a merger, and the SJC ordered

the calculation of rescissory damages. Id. at 1115-16. The parties

then settled. Following settlement, the plaintiffs filed a motion for

attorney's fees and costs to be assessed against the defendants. The

superior court rejected that argument on the ground that in Coggins I ,

"the higher court ordered the derivative claim 'reinstated' . . .

solely to permit a reconstructive calculation of rescissory damages,

and not as a calculation of corporate damages." Coggins II, 550

N.E.2d at 142. Reasoning that the plaintiffs thus had not succeeded
- 19 -

in garnering funds on the corporation's behalf, the superior court

ruled that their attorney's fees should come from a common settlement

fund rather than from the defendants. Id. In affirming the lower

court's ruling, the Massachusetts Supreme Court said that attorney's

fees may be awarded from a common settlement fund, but emphasized the

discretionary nature of such an award. "Where a party has at his or

her own expense, been successful in creating, preserving or enlarging

a fund in which other parties have a rightful share, a court may order

the payment of attorneys' fees and expenses out of the fund as part of

the damages award. . . . Such an allowance is discretionary and not a

matter of strict right." Id. at 143 (citations omitted).

Even if a court were to apply the rule set forth in Coggins

II in a Chapter 93A class action like this one, and exercise its

discretion to award the named plaintiff attorney's fees from a common

settlement fund, the award would simply be the unremarkable result of

an exercise of the equitable discretion of the trial court rather than

the mandated result of any language in Chapter 93A. Indeed, Chapter

93A does not, by its terms, address the aggregation/allocation issue

in a class action suit. The possibility of an aggregated award through

the exercise of the court's discretion does not justify disregarding
6 Nor do the Massachusetts cases that are the source of the

language quoted in Coggins II help Spielman. These cases involve three

narrow exceptions in equity practice to the general rule that a

litigant must pay for his own lawyers. In Commissioner of Insurance v.

Massachusetts Accident Co., 61 N.E.2d 137 (Mass. 1945), the court said

that one of the exceptions applied when "a litigant" at his own expense

created or increased "a fund in which others have a right to share."

Id. at 139-40. Examples of such funds were those controlled by the

executor of a will or a receivership. See, e.g., Boynton v. Tarbell,

172 N.E. 340 (Mass. 1930); Davis v. Bay State League, 33 N.E. 591

(Mass. 1893).

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the anti-aggregation principles of Snyder and Zahn. See Snyder, 394

U.S. at 339-40; Zahn, 414 U.S. at 301.6

In sum, we reject Spielman's argument that Chapter 93A's

authorization of attorney's fees requires that such fees be aggregated

to the named plaintiff for purposes of determining federal

jurisdiction. For the reasons we have stated, we find that Spielman's

amended complaint fails to meet the amount-in-controversy minimum.

Having found no basis for the exercise of federal diversity

jurisdiction, we affirm the district court's dismissal of Spielman's

case.

Affirmed.